March 20, 2019

February 21, 2018

The 7th Circuit Court of Appeals affirmed a man’s conviction and sentence for conspiracy to commit robbery, finding the denial of his motion to change venue and suppress evidence was not erroneous.

In July 2015, Lawrence Adkinson and others robbed a T-Mobile phone store in Clarksville, Indiana, and then a Verizon store in Kentucky. With handguns drawn, they stole approximately 100 cell phones and other items. They later robbed nine additional stores, including three more T-Mobile stores.

Upon its investigation of the robberies, T-Mobile pulled data from cell sites near the first two victim stores to identify which phones had connected to them and were close to the crimes. From these “tower dumps,” T-Mobile determined that only one T-Mobile phone was near both robberies and that Adkinson was an authorized user on that phone’s account.

T-Mobile gave the cell-site location data to the FBI, which then used it to obtain a court order under the Stored Communications Act, 18 U.S.C. § 2703, granting the FBI access to additional cell-site data.

Before his trial, Adkinson moved to suppress “any and all evidence obtained through cellphone records and/or triangulation of cellphone numbers,” arguing the government obtained it without a warrant in violation of the Fourth Amendment. During voir dire, he also moved to transfer the case to a venue with “a better pool of African Americans.” Both motions were denied, first finding T-Mobile was not a governmental agent and then that the venue motion was “extremely untimely.”

The 7th Circuit Court similarly rejected his arguments on appeal. It found that federal law authorized the government to prosecute Adkinson in the district where he offended and that he had an opportunity to tease out any potential juror bias during voir dire.

“The district court did not abuse its discretion in denying Adkinson’s motion because, regardless of his arguments regarding the emerging science on implicit bias, the Constitution does not entitle a defendant to a venire of any particular racial makeup,” the per curium order stated. “Adkinson’s attempt to create a presumption of implicit racial bias based on the racial composition of the jury venire fails. To the extent Adkinson subjectively worried about implicit bias, voir dire was the appropriate vehicle to address it.”

It further noted that Adkinson’s motion was a month late and offered no reason for his tardiness or failure to comply with the district court’s pretrial scheduling order.

Addressing his second argument, the 7th Circuit found that Adkinson’s Fourth Amendment rights were not violated when the district court denied his motion to suppress the cell-site data that T-Mobile collected.

“First, T-Mobile is a private party, and Adkinson has not shown that it was the government’s agent. … Second, regardless of agency, Adkinson’s Fourth Amendment rights were still not violated because Adkinson consented to T-Mobile collecting and sharing his cell-site information. … Third, (Carpenter v. United States, 138 S. Ct. 2206 (2018)) itself does not help Adkinson,” the order said. “The case did not invalidate warrantless tower dumps which identified phones near one location (the victim stores) at one time (during the robberies) because the Supreme Court declined to rule that these dumps were searches requiring warrants.”

“Finally, even if Adkinson sought to challenge the cell-site location data that the government later collected through the order it obtained under the Stored Communications Act, the challenge would be meritless,” the panel concluded. The case is USA v. Lawrence D. Adkinson, 17-3381.
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The Indiana Department of Correction must provide a Muslim inmate housed at the Indiana State Prison with a meat-based diet in accordance with his religious beliefs, a divided panel of the 7th Circuit Court of Appeals ruled in a decision upholding a lower court.

The majority judges affirmed the Southern Indiana District Court opinion handed down in August 2017 in Roman Lee Jones v. Robert E. Carter, Jr., 17-2836.

The case centers around Roman Lee Jones, who is a member of a sect of Islam that requires a meat-based diet. Accordingly, Jones requested that ISP provide him with a halal diet, and initially the DOC offered certain inmates pre-packaged kosher meals that included meat.

While Jones conceded that eating this kosher diet would be acceptable to his religious practices, cost restrictions prompted DOC to begin serving certain inmates, including Jones, vegetarian kosher meals. However, certain inmates at facilities without kosher kitchens were still provided with meat-based, pre-packaged kosher trays.

When the Department of Correction refused Jones’ request for the kosher trays that included meat, he filed suit. Specifically, Jones argued that imposing the vegetarian diet on him when the pre-packaged, meat-based meals were still available was in violation of his rights under the Religious Land Use and Institutionalized Persons Act.

U.S. District Court for the Southern District of Indiana Senior Judge William T. Lawrence agreed with Jones, ruling that the prison’s refusal to serve Jones a meat-based diet was a violation of RLUIPA. The 7th Circuit Court of Appeals ultimately agreed in a split decision.

On appeal, DOC argued the district court erred in holding that Jones was substantially burdened by the vegetarian kosher diet when, according to the department, he could have purchased the halal meat he needs to supplement his diet at the prison commissary. DOC characterized Jones’ lack of meat as the result of “his own spending choices,” not as the result of DOC action.

But citing to Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) — which addressed RLUIPA’s sister statute, the Religious Freedom Restoration Act — the majority judges found that making Jones pay “a few dollars a day” for his own halal meat would be too large an amount for a prisoner.

“He makes, at most, $8.40 per week at his prison job. Even though that amount is supplemented by sporadic funds sent from his friends and family, Jones cannot reliably afford to pay for the meat himself,” Chief Judge Diane Wood wrote for the majority joined by Judge Ilana Rovner. “The state is in effect demanding that Jones, uniquely among all inmates, zero out his account and forgo purchasing other items such as hygiene products or over-the-counter medicine, if he wants to avoid a diet that violates his religious beliefs.”

The majority noted the U.S. Supreme Court in Hobby Lobby chose not to require a demonstration of hardship or detailed findings on finances before determining that the fine at issue triggered protection for Hobby Lobby’s owners.

“Jones is entitled to no less,” Wood wrote. “He has testified to his meager sources of income, and the state has confirmed that the cost to Jones of subsidizing his own religiously compelled diet would systematically outpace his reliable income. That would be enough under Hobby Lobby for the Supreme Court, and thus it is enough for us.”

The majority further found that DOC’s argument that it should not have to “subsidize” or “underwrite” Jones’ religious diet failed because Jones is requesting only to receive the same kosher trays that DOC already provides to other inmates at facilities that do not have kosher kitchens.

However, Circuit Judge Michael B. Brennan dissented in a separate opinion, arguing the district court did not hear the necessary evidence on the expenses of prison life and “made no finding as to Jones’s financial circumstances.”

“The majority opinion states that unless the district court is affirmed, Jones will be forced to ‘give away his last dime’ to obtain halal meat,” Brennan wrote. “Were that true, the DOC’s policy may very well impose a substantial burden on Jones. But because the district court never made any findings of fact on this topic, Jones’s financial situation — and the severity of the burden commissary purchases place on him — is an unresolved fact dispute.”

Thus, Brennan argued that “(b)ecause halal meat options are readily available within the facility where Jones is housed, remand is warranted for further fact-finding on these questions.”
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Feb. 26

Civil Plenary

Civil Forfeiture/Amended Statute

Leroy Washington v. Marion County Prosecutor

17-2933

In another dispute in an Indiana civil forfeiture case, the 7th Circuit Court of Appeals has denied issuing an opinion on a district court ruling that found parts of the state statute unconstitutional, finding the lower court was not given a chance to address the state’s effort to fix the problem.

The case began in 2016 when Leroy Washington was pulled over and arrested on several felony charges, which also led the towing and forfeiture of his vehicle under Indiana Code 34- 24-1-1(a)(1) and 2(a)(1). Washington asserted his Fourteenth Amendment due process rights were violated on behalf of himself and others like him in a federal class action complaint.

An August 2016 ruling by Southern Indiana District Court Chief Judge Jane Magnus-Stinson found Washington’s assertion to be correct, and that Indiana Code section 34-24-1-1(a)(1), when read in conjunction with statutory provisions of the same chapter, was unconstitutional. Specifically, Magnus-Stinson found it was unconstitutional for law enforcement to hold a seized vehicle without a “post-seizure, pre-forfeiture hearing.”

The Marion County Prosecutor’s office returned Washington’s vehicle and moved to dismiss the case as moot, but the district court certified a class and granted Washington summary judgment in August 2017. While the prosecutor’s subsequent appeal was pending, Indiana amended its forfeiture statutes, partly in an attempt to address Magnus-Stinson’s constitutionality concerns.

Those changes, among other things, require prosecuting attorneys to file a probable cause affidavit within seven days of the seizure. If no probable cause can be found, then the property must be returned to its owner.

The prosecutor’s office argued to the 7th Circuit Court that the old version of the statute did not violate Washington’s due process, and that the new version changed and increased the available process, thus ameliorating any potential due process deficiencies identified by the district court.

Washington continued to hold that the statute before and after its amendments violated due process. He contended that the amendments do not cure the due process deficiency, provide any meaningful impact or moot his claim.

But a 7th Circuit panel concluded it would not give an opinion on the case, Leroy Washingtonv. Marion County Prosecutor, 17-2933. The unanimous panel found that the district court never had a chance to address the amended statute.

“Given that the record and arguments regarding the amendments are under-developed, we remand this case to the district court for further proceedings,” Circuit Court Judge Daniel Manion wrote for the panel.

The 7th Circuit Court thus directed the district court to address both parties’ contentions regarding the amended statute and answer the question of whether it properly solved Magnus-Stinson’s constitutionality concerns. The panel further added that if appropriate, the district court should also revisit the class to determine whether it should be decertified or redefined accordingly.

“At present, we express no opinion regarding the constitutionality of the old or new versions of the statute, regarding mootness, or regarding the class. Also, our argument summaries do not limit the arguments the parties may raise on remand,” Manion continued. “We leave latitude to the district court to conduct further proceedings it deems necessary and proper given the amendments and the parties’ positions. Any review we are subsequently called upon to make will benefit from these proceedings and the reasoning of the district court.”

The ruling comes after the Supreme Court of the United States unanimously overruled the Indiana Supreme Court in February, concluding the Fourteenth Amendment incorporates the Eighth Amendment’s ban on excessive fines to the states in, Tyson Timbs v. Indiana, 17-1091.
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Feb. 27

Civil Tort — Medical Malpractice/$15 Million Jury Award

Courtney Webster v. CDI Indiana, LLC

18-3080

An Indianapolis jury’s award of $15 million to a woman whose cancerous tumor went undetected after a CT scan at a Carmel medical imaging center was upheld by a federal appeals court.

The 7th Circuit Court of Appeals affirmed the judgment of a federal jury in Indianapolis that last June awarded $14 million to Courtney Webster and $1 million to her husband, Brian Webster.

Courtney Webster had gone to CDI’s Carmel center in November 2014, and the day after she was given a CT scan, Dr. Brian Walker issued a report finding no masses, despite images showing a mass indicating rectal cancer. By the time Webster’s cancerous mass was diagnosed nearly a year and a half later, it had metastasized and spread to her lungs and liver.

The couple sued Center for Diagnostic Imaging, Inc., doing business as CDI Indiana LLC, alleging the Carmel imaging center failed to identify Courtney’s tumor, severely reducing her chances of surviving cancer. The federal court jury ruled in her favor and awarded damages more than 10 times those allowed under Indiana’s medical malpractice caps.

“We agree with the district court’s analysis and so we affirm,” Circuit Judge Amy St. Eve wrote for the three-judge appellate panel in Chicago.

That analysis by Indiana Southern District Chief Judge Jane Magnus-Stinson largely had to do with whether CDI was subject to Indiana’s $1.25 million cap on damages under the Indiana Medical Malpractice Act. But the facts of this case permitted litigating in federal court outside those state limitations.

“In October 2016, the Websters filed this medical malpractice lawsuit against CDI in federal court based on diversity jurisdiction. That is not the norm for Indiana medical malpractice claims,” St. Eve wrote. “Typically, such claims fall under Indiana’s Medical Malpractice Act … which limits liability for registered qualified health care providers and requires the presentation of a proposed complaint to a medical review panel before an action can be commenced in court.”

But here, defendant CDI had not registered as a qualified health provider to take advantage of the IMMA’s caps on damages.

“In a well-reasoned and thorough opinion, the district court concluded that the Supreme Court of Indiana’s apparent agency holding in (Sword v. NKC Hosp., Inc., 714 N.E.2d 142, 152 (Ind. 1999)) applied to the circumstances of this case,” the 7th Circuit observed. The Sword court held that a medical provider is liable if a patient reasonably relied on its apparent authority over the wrongdoer.

Walker was a radiologist hired as an independent contractor by Medical Scanning Consultants, which provided radiologists to CDI to interpret its medical imaging. Both Walker and MSC had registered as qualified health care providers under the Indiana Medical Malpractice Act, and therefore were shielded by the $1.25 million medical malpractice damages caps, unlike CDI. The parties stipulated that MSC does business as CDI and uses the CDI related trademarks to assist in marketing as part of a national provider network.

However, “Courtney, in fact, believed CDI had provided the health care services in relation to her November 2014 CT scan,” the 7th Circuit noted. “CDI’s argument that Dr. Walker was an independent contractor hired by MSC, therefore, is of no moment unless Courtney was aware of any such contractual relationship.

“… Accepting CDI’s contrary argument would mean that health care facilities could easily evade liability by using independent contractor professional organizations to employ physicians,” St. Eve wrote. “Put differently, a medical center cannot hold itself out to the public as offering health care services — and profit from providing those health care services — yet escape liability by creating a complex corporate arrangement of interrelated companies. We are hard-pressed to believe Indiana law would favor that result.”

Indianapolis attorney Jerry Garau argued for the Websters before the 7th Circuit, and attorney Kathleen DeLaney is among the legal team representing the couple. She said in a statement, “We are very pleased with the Court of Appeals decision, which came in near record time. While the outcome of the case is very positive, it does not undo the tragedy that the Webster family has suffered and will continue to suffer.”

Indianapolis attorney Jay Peters of Plunkett Cooney PC represented CDI and argued before the 7th Circuit. He did not immediately respond to a message seeking comment.

The case is Courtney Webster v. CDI Indiana, LLC, 18-3080.

Indiana Supreme Court

Feb. 21

Civil Tort — Wrongful Death/Survivor Damages

James T. Horejs, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner, Deceased v. Albert Milford, D.O., et al.

19S-CT-97

The personal estate of a woman whose husband died intestate without heirs and while litigating a wrongful death suit could be able to claim survivor damages after the Indiana Supreme Court granted transfer to the estate’s case and overturned two lower courts.

David Shaner filed a wrongful death suit after the death of his wife, Laura, against Dr. Albert Milford, St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC, alleging the providers had been negligent in Laura’s care and caused her death. His claim for survivor damages under the wrongful death statute included the loss of Laura’s earnings, wages and benefits, the loss of the reasonable value of her services, and the loss of love, affection, companionship, society and support and protection.

However, David died intestate and without heirs while the suit was pending, and the Indiana Court of Appeals upheld a ruling finding that the estate’s personal representative could not claim survivor damages. The health care providers argued Laura’s estate should be limited to the final-expense damages outlined in the wrongful death statute, while her estate countered that it should be able to pursue David’s survivor damages under the Supreme Court decision in Bemenderfer v. Williams, 754 N.E.2d 212 (Ind. 2001). The COA disagreed with the latter argument.

But Indiana Supreme Court justices reversed the Court of Appeals’ ruling, finding David’s claim for survivor damages did not abate upon his death and was not dependent on the existence of an heir. But while noting that neither the relevant statues — specifically, the wrongful death and survival statutes — nor Bemenderfer required an heir for such a claim to survive the death of a party, the high court was also unconvinced the proper party was before the court to continue David’s damages claim. Thus, the justices remanded James T. Horejs, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner, Deceased v. Albert Milford, D.O., et al.,19S-CT-97.

First, the high court found that the relevant statutes did not preclude an action for survivor damages and that Bemenderfer did not change that result.

“While it is true there was an immediately identifiable heir in Bemenderfer, there is no language in that opinion that would suggest our Court read a requirement of a surviving heir into the otherwise facially clear wrongful death and survival statutes,” Justice Steven David wrote for the panel, declining to make an exception to the central holding of Bemenderfer.

“… After all, a wrongful death action is ‘entirely a creature of statute,’” David continued, quoting Durham ex rel. Estate of Wade v. U-Haul, 745 N.E.2d 755, 758 (Ind. 2001). “Because the plain language of the wrongful death and survival statutes require that a properly-accrued claim does not abate, we hold that David’s claim for survivor damages could have survived regardless of the existence of an heir.”

The high court further noted that it was still unsure as to whether Laura’s estate was the right party to make the wrongful death claim.

“We note that the key difference between Bemenderfer and today’s decision is that the daughter in Bemenderfer was appointed as a personal representative of the husband’s estate and the wife’s estate,” David wrote. “This position allowed her to continue the husband’s claim for survivor damages on behalf of the husband’s estate after his death. Here, only Laura’s estate is before our Court.”

Thus, the high court remanded for the Lake Superior Court to consider whether a proper party exists to continue the claim that David’s estate would be eligible to be reopened.

The Indiana Court of Appeals denied a mother’s argument of negligence against a gun owner whose stolen handgun caused the death of her son. The appellate court found the gun owner was shielded from liability under Indiana Code section 34-30-20-1.

While parked in a public area, Christopher Lee left his loaded handgun on the seat of his truck, leaving it unlocked and unattended. C.O., a minor, walked by and took the gun from the truck, took it home and showed it to his friend Matthew Kendall. In the process, the handgun discharged, shooting and killing Kendall.

Shelley Nicholson, on behalf of her son, Kendall, sued Lee, alleging that the storage of his handgun in open view inside an unlocked and unattended vehicle was negligent and a proximate cause of Kendall’s death.

Lee filed a motion for judgment on the pleadings, arguing that regardless of how he stored the gun, if it was stolen he was statutorily immune from liability for any resulting harm. The trial court granted the motion before Nicholson had a chance to respond to it, prompting her motion for reconsideration on her timely brief in opposition. The Dubois Circuit Court denied.

Nicholson appealed the trial court’s decision, arguing it erred in granting Lee’s motion for judgment and in finding that Indiana Code section 34-30-20-1 barred her claim as a matter of law. Specifically, Nicholson stated she does not claim Lee is liable based on C.O.’s actions, and thus, the statute does not apply.

Instead, she claimed Lee himself to be negligent in leaving the gun unattended and available in a public place, having “failed to satisfy the most basic, non-burdensome step available for safe storage.”

The appellate court cited Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 270 (Ind. 2003), noting that Indiana Code section 34- 30-20-1 was enacted by the Indiana legislature less than one year after Estate of Heck was published, more than likely in direct response.

“When viewed through this lens, it becomes apparent that the General Assembly intended to shield gun owners from liability for failing to safely store and keep guns, when the gun that was unsafely stored is procured by a crime and then later used to commit another crime. And notwithstanding Nicholson’s creative argument, the text of the statute likewise supports this conclusion,” Judge John Baker wrote.

“It cannot seriously be questioned that Lee’s failure to safely store his gun is ‘related to’ C.O.’s later use of that same gun. In other words, the statute immunizes Lee from liability both for the acts of C.O. and for his own failure to properly store the gun,” Baker continued.

The appellate court further denied Nicholson’s additional assertion that negligently storing a handgun such that it is easily accessible by children could be found to be a “transfer” of the gun subject to strict liability.

“In sum, we find that both the plain language of Indiana Code section 34-30-20-1 as well as the fact that it was clearly enacted in response to our Supreme Court’s decision in Estate of Heck support the trial court’s order granting judgment on the pleadings to Lee,” Baker concluded. “As a matter of law, he is immunized from liability in this case, whether the focus is on C.O.’s actions or Lee’s own failure to store his gun safely and properly.”

In the Matter of the Parent-Child Relationship of Ma.H., Le.H., Lo.H., W.H., La.H., Me.H., and S.W. (Children) and M.H. (Father) and R.H. (Mother); et al. v. The Indiana Department of Child Services

18A-JT-1296

Even though the Indiana Court of Appeals had previously affirmed that the youngsters in this case were children in need of services, in part because of allegations of a father’s sexual abuse, it has reversed the termination of parental rights because the requirement that the father participate in a sex offender treatment program violated his Fifth Amendment right against self-incrimination.

The Indiana Department of Child Services found the seven minor children of M.H. (father) and R.H. (mother) were children in need of services after M.H.’s stepdaughter, R.W., accused him of molesting her. The Wells Circuit Court adjudicated the children as CHINS, and the Court of Appeals upheld the finding in May 2017 in In the Matter of La.H., Le.H., Lo.H., Ma.H., S.W., W.H., and Me.H. and M.H. (father) v. The Indiana Department of Child Services, 90A02-1609-JC-2135.

However, the focus remained on reuniting the family, and the trial court issued an order that required the father to complete a sex offender treatment course. M.H. refused to participate in the treatment program because he would have to take a polygraph and admit the truth of R.W.’s allegations, which, he argued, ran counter to his Fifth Amendment right to remain silent.

A split Court of Appeals agreed in In the Matter of the Parent-Child Relationship of Ma.H., Le.H. Lo.H., W.H., La.H., Me.H. and S.W. (children) and M.H. (Father) and R.H. (Mother) v. The Indiana Department of Child Services, 18A-JT-1296.

On appeal, DCS contended the law-of-the-case doctrine applies and can be used to make M.H. admit to sexual abuse since the appellate court affirmed that conclusion in the previous case. But the majority held the law-of-the-case doctrine cannot prohibit the father from invoking the Fifth Amendment.

“The case before us is distinguishable, as the liberty interest Father has at stake here is significant – his right to remain free of incarceration without the State proving his guilt beyond a reasonable doubt based on his coerced admission,” Judge Melissa May wrote for the majority joined by Judge John Baker. “…Because Father has not been convicted of crimes based on R.W.’s allegations, we agree the requirement that he admit committing those crimes implicates his Fifth Amendment right against self-incrimination.”

The majority, thus, remanded the case for reinstatement of the CHINS proceedings, a re-examination of the requirements for reunification and the entry of a revised dispositional order.

“As a practical matter, I believe the majority opinion is written with too broad a brush: if a parent in a future CHINS/termination case says he or she did not do the act which precipitated DCS involvement in the family and refuses to participate in treatment designed to address the issue for fear of criminal reprisals, then DCS could not prove a termination case,” Robb wrote. “It would encourage refusal to participate in treatment.”

In addition, Robb argued that while the father can invoke his Fifth Amendment right, that does not prevent the consequences from asserting that right. Here, it was the possibility of termination of M.H.’s parental rights for failing to participate in meaningful therapy.

“However, even accepting Father’s position that he should not have been required to take a polygraph test or admit to wrongdoing and making no negative inference from his invocation of the Fifth Amendment, the essence of this case is that which we often encounter: Father says he did nothing wrong and R.W. says otherwise,” Robb wrote. “The trial court found R.W. to be a more credible witness than Father and again, determining credibility and weighing conflicting evidence is the trial court’s province.”•